Southern African Catholic Bishops’ Conference






1. The Southern African Catholic Bishops' Conference welcomes the opportunity to comment on the National Health Bill. This Bill represents an important step along the path to fulfillment of the constitutional right of access to health care. This right, and especially the right of the poor to receive such services free of charge, is at the heart of the Catholic Church's own commitment to the field of health care. For over 150 years the Church has run hospitals and clinics throughout South Africa; there are presently 2 hospitals, 32 clinics, 13 hospices, 7 homes for the elderly, 3 orphanages, and many day care and counseling centres, predominantly among communities whose needs were neglected or ignored by the colonial and apartheid authorities.

More recently the Church has become deeply involved in caring for those affected by the HIV/AIDS pandemic. We now have the largest network of home-based caregivers in the country, with 44 ongoing projects in all nine provinces. Nearly all of the Church’s 32 dioceses have HIV/AIDS teams, with responsibility for prevention education, home-based care and the care of orphans and vulnerable children

Against this background we move to a consideration of some specific aspects of the Bill.


Objects; Treatment of those in special need; Participation

  1. We endorse and support the objects of the Bill. As a private provider of health care we look forward to co-operating with government in the achievement of these objects.
  2. We also support clause 4, dealing with free health care services for certain categories of people. We would, however, suggest that Parliament should set out the basic categories, rather than leaving it entirely in the hands of the Minister. In our view the following should qualify for free health services:
  3. All children up to the age of six years, as well as those children who qualify for the child support grant;

    All those in receipt of the state pension, a state disability grant or any other social grant.

  4. We strongly endorse clause 8, dealing with participation in decisions. It is an important element of the dignity of the person that he or she be entitled and enabled to understand and participate in decisions affecting their health.
  5. Participation in policy development and implementation

  6. We note that a National Health Council (clause 21) and a National Health Advisory Committee (clause 23) are to be established. We question the need for both such bodies, since their membership and functions overlap to a large extent. We suggest that a single body would suffice.
  7. More importantly, however, we are concerned that there is no provision for representatives from either the private health sector or non-governmental health care organisations. We submit that the National Consultative Health Forum contemplated in clause 26, while welcome, will be of limited value, since it is essentially only an information sharing body, and since it is required to meet only once every two years. In essence, all those involved in the provision of health care, not just the state, must be placed in a position where they can contribute to and influence policy.

    (We do note that greater provision is made for non-government involvement in clause 28(2) (f), dealing with provincial health councils, but this does not meet the need for involvement at a national level.)


    Administrative concerns

  8. We understand the need for the state to exercise general control over the provision of health care services. At the same time, however, it must be recognised that private sector health care providers, especially those of a non-commercial nature, may not always be able to comply with higher-level plans. For example, a religious body may wish to establish a facility for the treatment of people living with Aids; it may be able to do so only where it owns property, or where its personnel live, and this may not fit in precisely with government plans.

We believe that a distinction must be drawn between private sector health care providers who operate for profit, and those who operate as a service and without profit. The former may more justifiably be subjected to the controls contemplated in clause 41 than the latter, who do not compete with what the state provides, but complement it.

7. In the interests of clarity we wonder what is meant by 'an appropriate mix of public and private health services' (clause 41(3) (c)) and how it is to be determined; and what is meant by

'perverse incentives' (41(3) (h))?

8. We suggest that provision be made for the 'prescribed application fee' mentioned in clause 41(2) to be waived in the case of applications by registered non-profit organisations.

9. Clause 41 (6) states that the Director General may withdraw the certificate of need on certain grounds. One of these, (d), states that "if the health establishment or the health agency ….persistently violates the constitutional rights of users or obstructs the State in fulfilling its obligations to progressively realise the constitutional right of access to health services." We would hope that this clause would not be used against those health establishments, including Catholic ones, which refuse to perform medical functions which they consider to be morally repugnant, like abortion. The constitutional rights of those who provide health care must also be taken into account in this regard.

10. Clause 45 provides that any person who performs any of the acts contemplated in section 41 (1) without a certificate of need would commit an offence and be liable to a fine or imprisonment for up to five years. We are concerned about the position of the thousands of people, many connected with churches, who carry out the vital work of Home Based Care giving for people with AIDS all over the country? There is no mention of them at all, or of the work that community health workers do in the community. It can surely not be the intention of the Bill that all such people should apply for certificates of need? It would appear, however, that Home Based Care giving could fall under the definition of ‘health establishment’.

11. Clause 48 provides for minimum standards for the provision of health services in non-health establishments and at public health establishments other than hospitals. This clause is welcomed, as is the sub-clause dealing with supervision of initiation schools, something which is becoming urgent. We suggest that this would be an appropriate place in the Bill to include reference to community health workers and home based caregivers.

12. Clause 50 states that the Minister must prescribe mechanism that enable a co-ordinated relationship between private and public health establishments in the delivery of health services. We hope that this "prescription" will be a dialogue between the two, not merely a laying down of conditions by the Minister. However, the manner in which it is stated does not indicate a two-way relationship.

13. Clause 51 requires that every private health establishment must maintain insurance cover sufficient to indemnify a user for damages that he or she might suffer as a consequence of a wrongful act by any member of its staff. It is hard to see how certain clinics and other establishments, especially those in the rural areas, and those which operate on a ‘below cost’ basis as a service to the community, would be able to afford such cover.


Transplants and organ donations

14. The donation of an organ, of blood or of tissue is an act of generosity and love, whether it is carried out by the donor while still alive, or after death by way of a will or other statement. We therefore welcome in general the Bill's provisions relating to such donations. However, we have one reservation, which pertains to the donation (and transplantation) of gametes. The Catholic Church understands that human procreation is intended by the Creator to occur within the context of marital sexual union; it is not simply a biological act which can be reproduced in the laboratory. We therefore do not support the provisions relating to the donation of gametes.

15. It is noted that the Bill requires the donor to consent to the donation, either while still alive, or through an instrument such as a will. Without such consent the transfer of the organ, blood or tissue ceases to be a donation or gift, and instead becomes an act of exploitation. It is in this context that we reject the provisions in the Bill that allow for the import or export of embryos or zygotes, or for research on embryos or zygotes, other than research that poses no threat to the continued existence of such embryos or zygotes.

It is our understanding that a human being comes into existence at the moment of conception; the words zygote, embryo, foetus, etc do not describe something other than a human being; consequently, nothing that would be prohibited in the case of born human should be permitted in the case of one not yet born.

16. The same principles which we have mentioned in paragraph 14 above lead us to welcome wholeheartedly the prohibition of reproductive cloning of human beings. We would simply add, in line with paragraph 15 above, that whereas therapeutic cloning is in principle acceptable if adult or umbilical cord cells are used as the 'raw material' (since an adult can consent and an umbilical cord is merely a temporary part of a human) such cloning would not be acceptable if the cells used were drawn from zygotes or embryos created or 'harvested' for that purpose.

17. We question the prohibition of transplants into people who are not citizens or permanent residents 'without the Minster's authorisation in writing' (clause 66(3)). On the one hand this suggests an unfair discrimination against non-citizens; on the other, the need to obtain such written permission could render the transplant useless since many such procedures must be carried out within hours of the death of the donor. This clause would also seem to require ministerial permission, for example, for a citizen to donate a kidney to his or her non-citizen relative in South Africa.


National Health Research and Information

18. Chapter 9 deals with national health research, and sets up a National Health Research Committee. The relationship of this body to the existing Medical Research Council needs to be clarified in order to avoid needless duplication.

19. Clause 77 sets up a National Health Research Ethics Council, which is to be welcomed. We note, however, that all 15 members will be appointed by the Minister after nominations by interested parties. We would hope that a variety of people in terms of cultural, ethnic and religious backgrounds will be chosen. We also welcome the provision for Health Research Ethics Committees at the level of each local institution where research is conducted.


20. In general terms we welcome the Bill, especially to the extent that it sets up comprehensive structures for the health care system in the whole country, something that has long been under discussion. Drafting and passing legislation, however, is relatively easy; we hope that the capacity to create and sustain the structures, standards and mechanisms envisaged in the Bill exists within the Department. Certainly the health care system is under enormous strain, largely due to the crisis presented by HIV/AIDS. We trust that this Bill will contribute to an improvement in the delivery of health services in general, and in particular that it will bring about a desperately-needed change in the attitude of the Health Ministry to the AIDS crisis.


For further information, please contact:

Tim Smith and Thuli Mzamane

Catholic Health Care Association

Mike Pothier

Catholic Parliamentary Liaison Office